29 other states oppose ruling on ceded lands

Twenty-nine states have joined Hawaii in asking the U.S. Supreme Court to overturn a recent Hawaii high court decision that freezes transactions involving ceded lands until a settlement can be reached with native Hawaiians.

Supporting the state of Hawaii

Twenty-nine states and one U.S. commonwealth have signed a court brief supporting Hawaii's request asking the U.S. Supreme Court to overturn a decision that prevents the state from selling or transferring ceded lands.
Those states are Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, Wyoming and the Commonwealth of the Northern Mariana Islands.
Star-Bulletin staff

In a court brief filed June 5 and written by Washington Attorney General Robert McKenna, the states argue that the Hawaii Supreme Court "misconstrued" the 1993 Apology Resolution, upon which its Jan. 31 ruling was based.

Justices ruled 5-0 that the state cannot sell or transfer ceded lands, about 1.2 million acres formerly owned by the Hawaiian monarchy, until native Hawaiian claims to those lands are resolved, an issue that would have to be decided by Congress.

The new brief contends land cannot be taken away from a state after statehood is granted and that the Hawaii Supreme Court's decision amounts to a "gross misapplication" of federal law.

"A state's ability to survive as a sovereign state is seriously undermined if the title to its lands can be singled out and impaired by the federal government," according to the brief, which restates many of the same arguments made by Hawaii Attorney General Mark Bennett in his appeal to the Supreme Court in April.

The Hawaii court's ruling stems from a 1994 case filed by the Office of Hawaiian Affairs, the agency that manages Hawaiian programs, to stop the state from transferring ceded lands on Maui and the Big Island from the Department of Land and Natural Resources to the predecessor of the state Housing and Community Development Corp. of Hawaii to develop low-cost housing.

In a written statement, the Office of Hawaiian Affairs said it believes the Hawaii Supreme Court "was correct in its analysis that the Apology Resolution confirms that the Hawaiians still have unresolved claims to the lands that were taken from them in 1893 without their consent and without compensation. ...

..."The Hawaii Supreme Court was very careful in its decision and pointed out that the DLNR had been operating under a self-imposed similar type of moratorium," the statement said. "The Apology Resolution is unique to Hawaii."

Bennett and the 29 states argue that the 1993 Apology Resolution, passed by Congress and signed by President Clinton to acknowledge the illegal overthrow of Hawaii's monarchy, was a "symbolic" gesture.

The Office of Hawaiian Affairs is expected to file its response to Bennett's appeal later this summer.

The U.S. Supreme Court likely would have no decision on whether to hear the appeal until after justices return in October from their summer break.

Bennett said "amicus" briefs, such as the one filed by the 29 states, typically are filed after the court decides to hear a case. The timing indicates broad support for Hawaii's position, he said.

"I think that it makes it more likely that the court will hear the case," he said. "The fact that at (this) stage 29 states have said that the power the Hawaii Supreme Court attributed to the Congress -- which is the power to bar Hawaii from selling or otherwise transferring ceded lands -- is a power that the Congress doesn't have, is significant."

In the amicus brief, the states argued to having a vital interest in the case, "because every state admitted to the Union since 1802 has received grants of land owned, prior to statehood, by the federal government."

The brief also was signed by the Commonwealth of the Northern Mariana Islands.